Gauhati High Court
Dhebor Gohain Baruah vs Assam Board Of Revenue At Guwahati & Ors on 2 November, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
WP(C) No.338/2012
Dhebor Gohain Baruah
S/o- Lt. Gopal Singh Gohain Baruah,
R/O- Nakari Nagar,
Ward No. 2, P.O.- North Lakhimpur,
Dist.- Lakhimpur, Assam. ......PETITIONER.
VERSUS
1 Assam Board Of Revenue at Guwahati.
P.O. & P.S.- Panbazar, Kamrup (M), Assam.
2 Gaurav Gohain Baruah
S/o- Lt. Champak Gohain Baruah,
3 Shri Troilukya Gohain Baruah
4 Shri Mohini Gohain Baruah
No. 3 and 4 are sons of Lt. Mihirkanta Gohain Baruah,
All are R/O- Nakari Nagar, Ward No. 3,
P.S.- North Lakhimpur,
Dist- Lakhimpur, Assam.
.......RESPONDENTS.
5 Digambar Gohain Barua
S/o- Lt. Rudra Kanta Gohain Baruah,
R/o- Nakari Nagar, Ward No. 3,
P.O.- North Lakhimpur,
Dist.- Lakhimpur.
6 Naba Krishna Gohain Baruah
S/o- Lt. Khagendra Gohain Baruah,
R/O- T.D.A. Building Unit 5, Tinsukia Development
Authority, Tinsukia, Assam.
7 Sanjib Gohain Baruah
S/o- Lt. Gyanandra Gohain Baruah,
R/o- Subansiri Apartment, Govt. Press Road,
Bamunimaidam, Ghy- 21.
8 Kunwari Baruah
D/o- Lt. Nilakanta Gohain Baruah &
WP(c) No.338/2012
Page 1 of 8
2
W/o- Lekhaneswar Baruah,
R/o- Ganakpatty,Sivasagar,
Dist.- Sivasagar, Assam.
.......PROFORMA-RESPONDENTS.
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
For the petitioner : Mr. Mr. A. Sattar
Ms. S.G. Baruah,
Mr. H.K. Baruah,
Mr. S. Hussain,
Ms. S. Choudhury,
Ms. F. Sattar. .... Advocates.
For the respondent Nos.2, 3 & 4: Mr. R. De ..... Advocate.
For the respondent Nos.5, 6 &7: None appears.
For the respondent No.8 : Mr. P.J. Saikia,
Mr. R.S. Misra,
Mr. A.K. Gupta,
Ms. M. Kechii. ..... Advocates.
Date of hearing & Judgement : 2.11.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Sattar, the learned Counsel appearing for the petitioner. The respondent Nos.2, 3 & 4 are represented by the learned Counsel Mr. R. De. The respondent No.8 is represented by the learned Counsel Mr. P.J. Saikia.
2. This is a mutation dispute in respect of inherited property and the litigating parties are the successors of the original owner Nilakanta Gohain Baruah. The predecessor died in 1952 and he was survived by 5 sons and 6 daughters, including Smt. Kunwari Baruah (respondent No.8). The following family tree will be of help in understanding the WP(c) No.338/2012 Page 2 of 8 3 respective position of the litigants:-
Land:
FAMILY TREE Area: 3B 4K 16 Lessa
Patta No.187 Dag No.195
Nilakanta Gohain Baruah Vill: Sowkham, Mouza-Nakari
Dist.-Lakhimpur (Assam).
Rudrakanta Mihirkanta Gopal Singh Khagendra Gyanandra Smt. Kunwari
R-8
Digambar Ajanta Dhebor Naba Krishna Sanjib
R-5 (Petitioner) (R-6) R-7
Champak Troilukya Mohini
(R-3) (R-6)
Gaurav
(R-2)
3. On the demise of Late Nilakanta Gohain Baruah, the names of 4 sons (barring 3rd son Gopal Singh Gohain Baruah), together with one daughter Smt. Kunwari Baruah were mutated in the Revenue records in respect of the estate measuring 3 Bigha 4 Katha 16 Lecha covered by Dag No.195, K.P. Patta No.187, of Village-Sowkham of Mouza-Nakari in Lakhimpur district. The reason for exclusion of the 3rd son (Gopal Singh Gohain Baruah) in the mutation exercise is not very clear. But the reflection of the name of Smt. Kunwari Baruah along with the four sons is projected to be on account of gift of the 1/5th share inherited by Gopal Singh Gohain Baruah, to Smt. Kunwari Baruah and her husband Lekhaneswar Baruah. However, the petitioner as the son of Gopal Singh Gohain Baruah contends that his father was not aware of the exclusion as the eldest legal heir Rudrakanta Gohain Baruah, had arranged for the mutation in 1962, after the predecessor WP(c) No.338/2012 Page 3 of 8 4 died.
4. Aggrieved by exclusion of his name as a lawful successor, Gopal Singh Gohain Baruah applied for inclusion of his name leading to registration of the Mutation Case No.173/87-88. In that proceeding, the mutation plea of the 3rd son was allowed on 7.7.1988 by the Circle Officer, North Lakhimpur and accordingly the name of Gopal Singh Gohain Baruah was included with the others, in the Revenue records of the ancestral property.
5. Twenty years after the mutation, the respondent Nos.2, 3 & 4 questioned the validity of the above inclusion order before the Assam Board of Revenue by filing an application under Section 151 of the Assam Land Revenue Regulation (hereinafter referred to as "the Regulation"). This application was registered as the Revenue Case No.129 RA(L)/2010. The affidavit sworn before the Notary by Smt. Kunwari Baruah (respondent No.8) was enclosed to the application filed in the Revenue Board and in that affidavit, the deponent stated that she was gifted the 1/5th share by the 3rd son Gopal Singh Gohain Baruah and that is how she and her husband Lekhaneswar Baruah's names were included and the name of Gopal Singh Gohain Baruah was excluded, at the time of initial correction of the Revenue records.
6. The learned Revenue Board accepted that Gopal Singh Gohain Baruah gifted 1/5th share of the property to Smt. Kunwari Baruah and her husband Lekhaneswar Baruah and accordingly it was concluded that inclusion of the name of the gift giver, as the inheritor of the family property, is wholly unjustified. The Chairman of the Revenue Board also observed that unless the name of Smt. Kunwari Baruah and her husband are struck off, the name of Gopal Singh Gohain Baruah could not have been mutated. On that basis, the WP(c) No.338/2012 Page 4 of 8 5 Circle Officer's order passed on 7.7.1988 in the Mutation Case No.173/87 - 88 was set aside with the observation that the share of Gopal Singh Gohain Baruah in the inherited property has devolved on Smt. Kunwari Baruah and her husband. 7.1 The intervention of the Revenue Board in the mutation proceeding is challenged on the ground that mutation order passed by the Circle Officer on 7.7.1988 was appealable under Section 147 of the Regulation and therefore, the aggrieved party could have approached the Deputy Commissioner. It is thus argued that when the Appellate Forum is indicated, the intervention of the Revenue Board on the application filed under Section 151 of the Regulation, is without jurisdiction.
7.2 The learned Counsel Mr. A. Sattar submits that the gift claimed by Smt. Kunwari Baruah from her brother Gopal Singh Gohain Baruah, was never proved. Moreover the unilateral claim made through an affidavit neither proves the gift nor any right can accrue upon immovable property, through such affidavit of the recipient. 7.3 The logic of belated intervention after 20 years of the mutation granted by the Circle Officer, is also questioned by the petitioner by referring to the limitation period prescribed by Section 148 of the Regulation.
7.4. The final submission made by the petitioner is that Gopal Singh Gohain Baruah being the son of the predecessor in interest Nilakanta Gohain Baruah, is a lawful legal heir and if his claim is to be challenged by anyone, the concerned party should move the competent Civil Court and the intervention by the Revenue Board on the basis of the unilateral affidavit of the respondent No.8, is wholly unsustainable. 8.1 On the other hand, Mr. R. De, the learned Counsel representing the respondent Nos.2, 3 & 4 submits that the Revenue Board has the power under Section 151 of the WP(c) No.338/2012 Page 5 of 8 6 Regulation to call for the proceedings of any subordinate authority and on this basis, the Counsel argues that the entertainment of the application under Section 151 by the Revenue Board, is not unjustified 8.2 The respondent Nos.2, 3 & 4 also claim their right of inheritance through Mihirkanta Gohain Baruah (2nd son of Nilakanta Gohain Baruah) and contend that they are entitled to their proportionate share, of the ancestral property. 9.1 The respondent No.8 Smt. Kunwari Baruah is one of the daughters of Late Nilakanta Gohain Baruah and she claims that Late Gopal Singh Gohain Baruah in the year 1962, gifted his share of the inherited property to her and her husband and on that basis the names of the two recipients were inserted in the mutation records, along with other 4 sons of Nilakanta Gohain Baruah.
9.2 The learned Counsel Mr. P.J. Saikia submits that the gift was between two siblings and the respondent No.8 never ever imagined that the petitioner as the son of Gopal Singh Gohain Baruah, will ever question the bonafide of the gift, after his father passed away.
10. On the demise of Nilakanta Gohain Baruah, the names of all his 5 sons should have been mutated the as legal heirs of the land owner but the name of the 3rd son Gopal Singh Gohain Baruah was surprisingly excluded. The petitioner's father was unaware of the exclusion and learnt of it only in 1987. Therefore, he immediately applied for mutation of his name as a legal heir of Nilakanta Gohain Baruah leading to the registration of the Mutation Case No.173/87 - 88. Considering the legitimacy of the claim of the son, the Circle Officer, Lakhimpur on 7.7.1988 had allowed the mutation application and on that basis, the name of the 3rd son Gopal Singh Gohain Baruah finds place in the Jamabandi WP(c) No.338/2012 Page 6 of 8 7 of the ancestral property.
11. The respondent Nos.5, 6 & 7 in their application under Section 151 of the Regulation stated that they were unaware of the mutation case filed by the petitioner's father and their pleaded case was that Late Gopal Singh Gohain Baruah had gifted away his share of the inherited property, to Smt. Kunwari Baruah (respondent No.8) and her husband Lekhaneswar Baruah. Therefore, he was disentitled to claim share of the inherited property as the gift recipients have stepped into his shoes. To establish the gift, the applicants relied only on the affidavit sworn by Smt. Kunwari Baruah (respondent No.8).
12. The gift made in the year 1962 was never legally proved but the Revenue Board accepted the gift to be a fait accompli only on the basis of affidavit sworn by the gift receiver. But no right in immovable property gets transferred without a registered document. But the Revenue Board overlooked this and interfered with the mutation order passed by the Circle Officer on 7.7.1988.
13. That apart, when the mutation order was appealable under Section 147 of the Regulation and the limitation period is also prescribed for such Appeal, the respondent Nos.2, 3 & 4 could not have filed the Section 151 application and convert it into an Appeal and on that basis maintain the belated challenge, against a mutation order passed in favour of the petitioner's father, Gopal Singh Gohain Baruah. The Revenue Board undoubtedly possess the revisional power under Section 151 of the Regulation but in my considered view, such power could not have been exercised on a matter which stood concluded 20 years earlier.
14. The presumption about the bonafide of the gift by the Revenue Board was not WP(c) No.338/2012 Page 7 of 8 8 based upon any legally acceptable document and therefore, the impugned decision dated 20.10.2011 is found to be unwarranted, particularly on account of the irregular and belated application. But at the same time, the mutation was allowed long back in 1962 to Smt. Kunwari Baruah and her husband and whether the gift was ever made by Gopal Singh Gohain Baruah (petitioner's father), can also be verified in a legal process. But such exercise was never undertaken and yet the Revenue Board unhesitatingly accepted the gift, only on the claim of the recipient. This is found to be erroneous and unacceptable.
The land in question continuous to be joint patta land notwithstanding the Partition Case No.274/2009 filed by the respondent Nos.2, 3 & 4 and therefore, the legal heirs and their successors have keen interest in determination of their respective share, in the ancestral property.
15. Following the above discussion, the impugned order dated 20.10.2011 (Annexure- A) in the Case No. 129 RA(L)/2010 rendered by the Revenue Board is found to be unsustainable and the same is quashed. The mutation granted to Gopal Singh Gohain Baruah on 7.7.1988 in the Mutation Case No.173/87 - 88 is however made subject to decision of a Civil Court. Liberty is granted to any of the aggrieved party to take recourse to the competent forum in accordance with law. It is ordered accordingly.
16. With the above order, the case stands disposed of.
JUDGE Datta/Roy WP(c) No.338/2012 Page 8 of 8